Minister for Immigration and Multicultural Affairs v Kobayashi, Hiromi
[1998] FCA 722
•29 MAY 1998
FEDERAL COURT OF AUSTRALIA
IMMIGRATION - refugee status - Appeal from decision of Administrative Appeals Tribunal - whether respondent satisfied statutory criteria for refugee status - whether first respondent “a member of a particular social group” - whether “women in Japan” or “unwed single mothers in Japan” constitute a relevant social group - whether any evidence to support a finding that “unwed single mothers in Japan” are a persecuted social group - whether any evidence to support a finding that first respondent suffered persecution “for reason of” membership of relevant social group - whether Japanese Government offers effective protection to respondents - whether status of second respondent should be considered separately.
Migration Act 1958 (Cth) - ss 476, 476(1)(e), 476(1)(g), 476(4), 476(4)(a)
Convention Relating to the Status of Refugees (Geneva, 28 July 1951)
Protocol Relating to the Status of Refugees (New York, 31 January 1967)
Ram v Minister for Immigration and Ethnic Affairs & Anor (1995) 57 FCR 565 - followed
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 71 ALJR 381 - cited
Canada (Attorney-General) v Ward (1993) 103 DLR (4th) 1 - considered and followed
Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685 - referred to
Minister for Immigration and Multicultural Affairs v A, B and C (RD Nicholson J, 9 April 1998, unreported) - referred to
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v HIROMI KOBAYASHI & Anor
NG 852 OF 1997
FOSTER J 29 MAY 1998 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 852 of 1997
BETWEEN:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
APPLICANTAND:
HIROMI KOBAYASHI
FIRST RESPONDENTKAZUO KOBAYASHI
SECOND RESPONDENTJUDGE:
FOSTER J
DATE OF ORDER:
29 MAY 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The decision appealed from be set aside.
The matter be remitted to the Refugee Review Tribunal for rehearing and determination according to law.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 852 of 1997
BETWEEN:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
APPLICANTAND:
HIROMI KOBAYASHI
FIRST RESPONDENTKAZUO KOBAYASHI
SECOND RESPONDENT
JUDGE:
FOSTER J
DATE:
29 MAY 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(Extempore)
This is an application pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”) for the review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 25 September 1997. By that decision the Tribunal set aside a decision of the present applicant, the Minister, relating to the respondents and remitted the matter for reconsideration with the direction that the respondents must be taken to have satisfied the criterion that they are persons to whom Australia has protection obligations under the Convention Relating to the Status of Refugees (Geneva, 28 July 1951) (“the Convention”) as amended by the Protocol Relating to the Status of Refugees (New York, 31 January 1967) (“the Protocol”).
The decision of the Tribunal was based on his satisfaction that the respondents were refugees within the meaning of the Convention and Protocol. The respondent, Ms Kobayashi, is thirty-seven years of age and a citizen of Japan. She is unmarried, and has a son, Kazuo, born out of wedlock on 29 July 1989. Her son is included in the application. In Japan Ms Kobayashi completed primary and secondary education in 1980 and obtained a certificate in Home Economics in 1982. Her family, being her mother, father and sister, reside in Japan. She was in employment in Japan as a semi-skilled worker.
She arrived in Sydney on 4 February 1996 on a student visa. She was accompanied by her son. She has had temporary extensions of that visa since that time. On 24 January 1997, she made an application for a protection visa for herself and her son. In so doing she assumed the task of satisfying the Minister that she and her son were persons who, in accordance with the Convention and:-
“Owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, [were] outside the country of ... nationality and [were] unable or, owing to such fear, [were] unwilling to avail [themselves] of the protection of that country; or who, not having a nationality and being outside the country of [their] former habitual residence [were] unable, or owing to such fear, [were] unwilling to return to it.”
It appears that she claimed in her application that she left Japan because, as “a single, unwed mother, she faced discrimination and sexual harassment from her bosses”.
The Minister’s delegate rejected Ms Kobayashi’s application as she found that Ms Kobayashi had not established that she was relevantly persecuted because of membership of a particular social group. In the delegate’s view, the only group which could be considered was “‘single mothers in Japan’ or something similar”. The delegate was not satisfied that such a social group in Japan could be recognised for Convention purposes. Ms Kobayashi’s claimed fears of persecution did not therefore relate to a Convention reason. Ms Kobayashi sought review of this decision by the Refugee Review Tribunal on 24 April 1997. She was accorded an oral hearing on 19 September 1997. On 25 September 1997, the Tribunal gave the decision which is the subject of this appeal by the Minister.
The Tribunal, as well as considering the applicant’s oral testimony, took into account the contents of certain documents relating to conditions in Japan and the position of women in that country, large portions of which were set out in his reasons. The Tribunal set out Ms Kobayashi’s claims as follows:-
“The applicant claimed that she fears persecution in her country of nationality due to the fact that she is a woman who has had a child without being married. As a result of these things she has been mistreated by her family, friends and employers, and has experienced discrimination from all these quarters as well as from the Government. She fears that she and her child will suffer abuse and severe discrimination from family, friends and the Government if she returns to Japan.”
The Tribunal then set out facts which he accepted:-
“... the Tribunal accepts that the applicant had a child outside of wedlock in 1989 and that as a result she was physically beaten by her father. It is also accepted that she was forced (in order to provide for her child) to work for longer than normal hours, for less pay and was subjected to physical and sexual harassment because of the fact she was an unwed mother. The Tribunal also accepts that she was even forced to work when she was physically unfit to do so from fear of losing her employment and hence the only means she had of supporting her child. The Tribunal also accepts that the Government agencies refused to help her when she went to them for financial and other assistance and that her family had rejected her. It is also accepted that the applicant was abused by people socially and in public from the fact that she is an unwed mother.”
The Tribunal made the following finding:-
“The Tribunal accepts that physical, mental and sexual abuse, rejection by family and friends, and social abuse which the applicant experienced prior to her departure from Japan were serious harms amounting to persecution as required by the Convention.”
The Tribunal then made findings as to the existence of a relevant particular social group. He made the following statement:-
“The Tribunal accepts that women are a particular social group for the purposes of the Convention. The Tribunal notes the evidence which supports the applicant’s statement that women find life particularly difficult in Japan due to the low status of women in traditional Japanese society. The evidence cited above confirms that women are subjected to discrimination and harassment on account of the fact that they are women and that such discrimination is representative of a general attitude towards women which pervades Japanese society. This discrimination can be particularly severe if a woman steps outside of the role that is allotted to a woman by traditional Japanese society. In some instances the evidence supports the contention that such abuse may be systematic, far-reaching and severe enough so as to amount to persecution as required by the Convention. The evidence cited above also shows that despite improvements in recent years and attempts by the Government to change attitudes towards women through equal opportunities and anti-discrimination laws many of these laws go unobserved and unenforced in Japan. The Tribunal accepts, therefore, that the applicant experienced acts of persecution previous to her departure from Japan by reason of the fact that she is a woman who is [an] unwed mother.”
It may be noted that this finding is equivocal as to the relevant social group. Was Ms Kobayashi being grouped by the Tribunal with Japanese women in general, or with Japanese unwed mothers?
The Tribunal then found that a real chance existed that she would experience similar persecutory behaviour if she returned to Japan. The Tribunal also found that the Japanese Government would not be able:-
“ ...to offer her effective protection against these feared harms and that it is unreasonable, given the nature of the harms she fears, to expect the applicant, given her background and education, to avail herself of this protection.”
He also found that the respondent’s child could, because of the stigma of illegitimacy, be likely to experience bullying at school against which he could not be effectively protected.
Accordingly, the Tribunal was satisfied that both respondents were relevantly refugees.
The Minister has appealed against this decision pursuant to s 476 of the Act. Reliance is placed upon ss 476(1)(e) and 476(1)(g) read with s 476(4). Those sections provide for review of a Tribunal decision on the ground:-
(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, ...
(g)that there was no evidence or other material to justify the making of the decision.
which ground cannot be made out unless
(4)(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material ... from which the person could reasonably be satisfied that the matter was established;...”
A number of criticisms are made of the decision by counsel for the Minister. A significant criticism is that legal error has attended the findings in relation to membership by the respondent of a particular social group. It is submitted and I agree, that it was not clear what particular social group has been selected by the Tribunal for consideration. In the passage cited it would seem that the Tribunal has approached the question on the basis that the respondent belongs to a class of Japanese woman and also to a class of Japanese unwed mothers. It is submitted, again in my view correctly, that this has led to some confusion.
Quite clearly a finding that women in general constitute a group in Japan which was subject to persecution would be a quite insupportable finding on the evidence tendered in this case. Alleged membership of a small group of single mothers could raise different considerations. It is relevant therefore to consider the principles relating to the question of membership of a group for the purposes of the Convention definition. Many decided cases have dealt with this question. I consider, with respect, that the formulation arrived at by Burchett J in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568-569 should be followed. It has recently been approved by Gummow J in Applicant A v The Minister (1997) 71 ALJR 381 at 414. Burchett J said at 568:-
“In my opinion, there is a unity of concept about the whole definition of a refugee contained in the Convention, so far as it relates to membership of a particular social group, which should always be kept firmly in mind. That concept flows through the separate elements of the definition. The well-founded fear of which it speaks is a fear of ‘being persecuted’. Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution. Consistently with the use of the word ‘persecuted’, the motivation envisaged by the definition ... is ‘membership of a particular social group’. If harmful acts are done purely on an individual basis, because of what the individual has done or may do or possesses, the application of the Convention is not attracted, so far as it depends upon ‘membership of a particular social group’. The link between the key word ‘persecuted’ and the phrase descriptive of the position of the refugee, ‘membership of a particular social group’, is provided by the words ‘for reasons of’ - the membership of the social group must provide the reason. There is thus a common thread which links the expressions ‘persecuted’, ‘for reasons of’ and ‘membership of a particular social group’. That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase ‘for reasons of’, and fastens upon the victim’s membership of a particular social group. He is persecuted because he belongs to that group.”
His Honour later proceeded as follows at 569:-
“...it remains important to keep steadily in mind the essential unity of the conception. A crowd is not a social group, and numerous individuals with similar characteristics do not make up a social group - certainly not one of a kind that is properly described as having a membership. There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is ‘for reasons of’ his membership of that group.”
It is submitted by the Minister that either the Tribunal has not borne in mind this interpretation of the Convention phrase when considering the question of the respondent’s membership of a social group, and has thus misdirected himself (see s 476(1)(e)), or alternatively, he has made a finding of such membership in circumstances where there was no evidence from which he could reasonably be satisfied that such a finding was warranted (see ss 476(1)(g) and 476(4)).
I am satisfied that this submission must be upheld. The documentary evidence in the proceedings provides no basis for finding that unwed mothers are a persecuted social group in Japan. The oral evidence is of extremely poor quality. It is given through a translator. It is for the most part given in response to questions which are both leading and multiple in nature with the result that the answers are of no worthwhile probative value. They certainly could not provide a reasonable basis for establishing the existence of such a social group. Nor could they reasonably lead to a finding that the applicant suffered persecution because of membership of the group in the sense referred to by Burchett J. I am satisfied therefore that error of law has been demonstrated on one or both of these legislative bases.
A further submission was made as to the Tribunal’s finding that:-
“... the Japanese Government would not be able to offer her effective protection against these feared harms and that it is unreasonable, given the nature of the harms she fears, to expect the applicant, given her background and education, to avail herself of this protection.”
This statement was criticised, correctly in my view, as being self-contradictory. It was also submitted that if it were viewed benevolently as amounting to two alternative findings then the evidence could not reasonably support either of them.
I agree. The documentary evidence clearly supports a general view of the Japanese polity as being that of an industrial democracy with an independent judicial system and appropriate government welfare agencies. A finding of general inability on the part of the Japanese Government to render assistance to someone in the position of the respondent cannot find support, on any reasonable basis, in the evidence. The question whether it was unreasonable to expect the applicant to avail herself of this protection because of a well-founded fear of persecution if she sought so to do must, of course, always be approached with caution. The state of the applicant’s evidence already referred to provides no reasonable basis for any such finding. Moreover, in my view, regard should have been paid to the caveat raised by the Supreme Court of Canada in Canada (Attorney General) v Ward (1993) 103 DLR (4th) 1 at 23:-
“The issue that arises, then, is how, in a practical sense, a claimant makes proof of a state’s inability to protect its nationals as well as the reasonable nature of the claimant’s refusal actually to seek out this protection. On the facts of this case, proof on this point was unnecessary, as representatives of the state authorities conceded their inability to protect Ward. Where such an admission is not available, however, clear and convincing confirmation of a state’s inability to protect must be provided. For example, a claimant might advance testimony of similarly situated individuals let down by the state protection arrangement or the claimant’s testimony of past personal incidents in which state protection did not materialize. Absent some evidence, the claim should fail, as nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognised in Lebanon in Zalzali it should be assumed that the state is capable of protecting a claimant.”
(See also per von Doussa J in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 151 ALR 685 at 707). Even if the quoted principle is stated too widely (see per RD Nicholson J in Minister for Immigration and Multicultural Affairs v A, B and C (Federal Court, 9 April 1998, unreported)), it provides, in my view, relevant guidance for the evaluation of evidence on the topic. In my view, the evidence in this case cannot reasonably support that finding. There is simply no evidence, by way of example, of any significant efforts, or perhaps any efforts at all, on the part of the applicant, to seek such protection or of its refusal.
As I am satisfied the matter must go back for rehearing on fresh evidence, I find it unnecessary to consider the separate question of the status of the applicant’s son. It is, in any event, not clear whether his application was relevantly separate from that of his mother. In the circumstances that her application is to be reheard it is, in my view, inevitable that his should also be reheard.
In the result, then, I uphold the appeal and make the following orders:-
That the decision appealed from be set aside.
That the matter be remitted to the Refugee Review Tribunal for rehearing and determination according to law.
I do not think it is appropriate, in the circumstances of this case, that the respondent should be ordered to pay the costs of the appeal. Accordingly, I make no order as to costs.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.
Associate:
Dated: 29 May 1998
Counsel for the Applicant: Mr J. Basten QC Solicitor for the Applicant: Australian Government Solicitor No Appearance by the Respondents Date of Hearing: 29 May 1998 Date of Judgment: 29 May 1998
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